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Sunday, February 14, 2016

Is Rule of Law against Bangladesh Constitution ?

Provisions for and against the
rule of law in the Constitution of Bangladesh

Rule of law means, the absolute supremacy
or predominance of the regular law as opposed to the influence of arbitrary
power, and excludes the existence of arbitrariness. The general conception of
the rule of law has become crystallized with professor Dicey’s usage of that
phrase in his work ‘the law of the Constitution’ first published in 1885. He first
stated that the rule of law was one of the essential features of the
Constitution. The rule of law is the legal principle that law should govern a
nation, as opposed to being governed by arbitrary decisions of individual
government officials. This principle of rule of law has three general
principles, to establish rule of law in a country government should execute
following principles:

1.Absence
of arbitrary power, because rule of law requires supremacy of Constitution and
others Ordinary laws before the influence of arbitrary power of executive
authorities.

2. Equality before law to the all classes of
people. No man is above the law, and the officials are like private citizens
under duty to obey the same law. There can be no special court or tribunal for
the state officials.

3.Constitution
is the result of the Ordinary law of land.

Accordingly, Bangladesh recognises rule
of law as a basic feature of its Constitution. In Anwar Hussain
Chowdhury v Bangladesh 1989 BLD, the Supreme Court of Bangladesh recognised
the rule of law as one of the basic features of the Constitution. In
spite of this, there have been many contradictory provisions in the
Constitution that go against rule of law. We aim to identify the relevant
provisions of the Constitution ensuring rule of law and then we will attempt to
analyse the contradictory provisions of the Constitution that go against the
concept of rule of law.

The place of rule of law in the
Constitution of Bangladesh

In fact, the term ‘rule of law’ is well
placed in the Constitution of Bangladesh. Its Preamble states the ‘rule
of law’ as one of the objectives to be attained. The Preamble, inter
alia, says “....it shall be a fundamental aim of the State to realise through
the democratic process a socialist society, free from exploitation – a society
in which the rule of law, fundamental human rights and freedom, equality and
justice, political, economic and social, will be secured for all citizens.”

In accordance with the above pledge, the
following positive provisions for rule of law have been incorporated in the
Constitution:

Firstly:Article 27
guarantees that all citizens are equal before law and are entitled to equal
protection of law. Article 27, therefore, forbids discrimination in law
or in State actions.

Secondly: Article 31
guarantees that to enjoy the protection of the law, and to be treated in
accordance with law, and only in accordance with law, is the inalienable right
of every citizen, wherever he may be, and of every other person for the time
being within Bangladesh, and in particular no action detrimental to the life,
liberty, body, reputation or property of any person shall be taken except in
accordance with law. Article 31 imports the concept of due process, both
substantive and procedural, and thus prohibits arbitrary or unreasonable law
and State action.

Thirdly:around 18
fundamental rights have been guaranteed in Part III of the Constitution and
constitutional arrangement for their effective enforcement has been ensured in
Article 44 (right to move to the High Court) and 102 (power of the High Court
to take appropriate action upon application).

Fourthly:Article 7 and 26
impose limitation on Parliament that no law which is inconsistent with any
provision of the Constitution can be passed. Article 7(2) confirms that
if any other law is inconsistent with the Constitution that other law shall, to
the extent of the consistency, be void.

Fifthly: In
accordance with Article 7, 26 and 102(2) of the Constitution, the Supreme Court
exercises the power of judicial review whereby it can examine the extent and
legality of the actions of both the executive and legislature and can declare
any of their actions void if they go beyond their limit.

Sixthly: the
people’s right to be governed by a representative body answerable to them has,
directly and indirectly, been ensured under Article 7(1) [all power belong to
the people, Article 11 (The Republic shall be a democracy where, among others,
fundamental human rights shall be guaranteed), Article 55 (Cabinet), Article 56
(Ministers), 57 (tenure of the office of the Prime Minister), and Article 65(2)
[composition of Parliament] of the Constitution.

Contradictory provisions to the
rule of law

The following are the contradictory
provisions in the Constitution which go against the concept of rule of law:

Emergency provisions:

Article 141A empowers the President to
declare emergency whenever he wishes. Except in war time situation,
declaration of emergency cannot be supported. By declaring emergency in
peace time the government can suspend fundamental rights of the citizens, limit
the Supreme Court’s jurisdiction and suppress the opposition movement.
This arbitrary exercise of power by the government is contradictory to the
concept of rule of law. Sheikh Mujibur Rahman’s government used this emergency
power to suppress the opposition in the early 1970s, and General Moin U Ahmed
and Dr Fakruddin Ahmed used the loophole of this emergency provision to
suppress the political parties and prolong their term in
2007.

Provision for ordinance making
power

Ordinance making power can be given in
emergency situations like national crisis, national calamity, and serious
economic turmoil etc. In those circumstances, there may be needs for
immediate legislative actions. However, Article 93 of the Constitution
allows the President to promulgate ordinances anytime during the recess of
Parliamentary session. In practice, a huge number of ordinances are
promulgated during this time by-passing Parliament. Parliament is the
recognised democratic law making body. But ordinance made laws are fully
undemocratic, for they are made by the executive at their will. This type
of law making process is contradictory to the rule of law.

Administrative tribunal

The presence of administrative tribunal
is not unknown in the developed democratic countries of the world. There
are various reasons for the existence of these types of tribunals, such as
quick relief and speedy proceedings for service matters requiring special
treatment and experience. However, there should be a transparent
procedure, and judicial control and supervision in those proceedings.
Administrative tribunals should not be a substitute for fairness and justice
provided by the independent court of laws. Article 117 of the
Constitution provides for the establishment of administrative tribunal.
There is, however, no clear provision as to who would chair the tribunal, what
would be their qualification and what would be their security of tenure.
The executive plays key role in the administration and judicial process of the
tribunal. This tribunal has been kept outside the writ jurisdiction of
the High Court under Article 102(5). It has also been kept out of the
supervisory jurisdiction of the High Court. These provisions are,
therefore, contradictory to the concept of integrated judicial system and
independence of judiciary - an important ingredient of rule of law.

The provision for preventive
detention

Preventive detention can only be
supported in the time of emergency. But Article 33 of the Constitution allows
the government to use this measure in peace time. In reality, every
government has used the Special Power Act 1974 as a permanent law to detain
people, mainly of opposition party background, without charge or trial.
Since a huge number of persons are detained every year without trial purely for
political purpose, the right to protection of law, protection of right to life,
and personal liberty and safeguards as to arrest and detention as guaranteed in
Article 31, 32, and 33 cannot be ensured. Therefore, the provision
allowing preventive detention in peace time under Article 33 is against the
concept of rule of law.

The provision of Article 70.

Article 70 blocks all positive measures
in the Constitution for ensuring rule of law in many ways. Firstly: the
government, avoiding debates and criticism, tends to make laws by ordinance and
later get those ordinances approved under sweeping power of Article
70. Secondly: rule of law, as opposed to rule of
individual or party, means rule of that law which is passed in a democratically
elected Parliament after adequate debate, deliberation and discussion.
But because of Article 70 neither an MP can put forward his strong dissenting
opinion nor can he/she vote against the party line. As a result, each and
every Bill of the government, no matter how undemocratic and unfair it may be,
gets quickly passed. Thirdly: the democratic right of
the citizens to be governed by a representative body answerable to them cannot
be ensured due to Article 70. Though Article 55 says “The cabinet shall
be collectively responsible to Parliament,” this provision of collective
responsibility has been meaningless because of Article 70 as the cabinet always
knows that it is not going to be defeated by motion of no-confidence, for no
member (MP) of the majority party has the right to vote against the party line.

The independence of judiciary

The most important precondition for
ensuring rule of law in a country is to have an independent and impartial
judiciary. Although the apex judiciary is said to be independent, the
reality and practicality do not suggest so. Despite Article 95(2)(c) says
“...such other qualifications as may be prescribed by law for appointment as a
Judge of the Supreme Court,” there has been no set and clearly defined
appointment procedure introduced yet for appointing judges in the Supreme
Court. Judges are frequently appointed on political consideration as
opposed to merit. Superseding judges have become norms. There has
been no separate secretariat for the Supreme Court established yet. Thus,
the Supreme Court is dependent on the executive for its secretarial
tasks. The subordinate judiciary is still executive dependent.
But in order to establish rule of law the subordinate judiciary must also be
independent and impartial. It was held, inChandra Mohan V U.P AIR 1966
SC 1987 1993, that “It is the Subordinate Judiciary who are brought most
closely into contact with the people, and it is no less important, perhaps
indeed even more important, that their independence should be placed beyond
question.”

The provision of Article 47

Although Article 7 and 26 impose
limitation on Parliament that no law which is inconsistent with any provision
of the Constitution can be passed, Article 47 saved certain laws and gave
protection to some laws which, on its face, are inconsistent to the various
provisions of the Constitution. Of those saved and protected laws, the
most dangerous are the laws passed in relation to the war crimes and crimes
against humanity introduced by the First Amendment of the Constitution.
Initially these laws were made with a view to try identified Pakistani army
officers arrested on the suspicion of war crimes. These laws were amended
in 2009 to include ordinary citizens and group of citizens of Bangladesh.
Now any citizen of Bangladesh can be arrested under this law. The black
side of this law is that once someone is arrested on suspicion of war crime and
crime against humanity, he will be denied of his fundamental constitutional rights
(i.e. fundamental rights and the right to apply to the High Court for judicial
review). As any citizen can potentially be targeted by this law, there is
a strong possibility that it can be used politically in future. As a
result, innocent people may be victims – despite being citizens of the country
by birth they will be denied of their inherent fundamental rights of the
country’s constitution! All these are contrary to the principle of rule
of law.

Quota system

The recruitment in the civil service of
the Republic based on existing 55% quota system as opposed to merit is directly
contradictory to Article 27 and 29 which respectively guarantee equality before
law and equality of opportunity in public employment. Although Article
28(4) allows some special provision for women, children and backward section of
citizens, the 55% quota is totally unfair, unjust and unreasonable. To
some extent, it amounts to a mockery to merit and the principle of equality and
non-discrimination. Therefore, the existing unfair and unreasonable quota
system is against the concept of rule of law.

Conclusion

There are, no doubt, some positive
provisions in the Constitution of Bangladesh for ensuring rule of law.
However, those positive provisions have been outweighed by the above negative
provisions. Therefore, the whole Constitution should be reviewed by an
independent penal of experts to assess the impact of the contradictory and
negative provisions on the common people of the country, and then recommend for
appropriate amendments.